Updates and background for this project (Digest)
VENUES
10.1 The activities of CJCs may be carried on at a number of different venues. The Act currently draws distinctions between these venues. CJCs may be “established at such premises as the Governor may determine by order published in the Gazette”.1 Such a gazetted premises would appear to be a “principal office” of a particular CJC.2 However, the activities of a CJC may also be carried on at such other places as the Director approves from time to time.3 Such premises, apparently, do not require gazettal.
Gazettal of centres
10.2 In IP 23 the Commission suggested that the current procedures are cumbersome and probably unnecessary and that CJCs ought to be able to open offices anywhere in the same way that other offices of business centres within the Attorney General’s Department are established. In IP 23 the Commission therefore asked whether the requirement for gazettal of Centres should be removed from the Act.4 Submissions that considered this issue agreed that the gazettal requirement should be removed.5 CJCs observed that the centre-based approach is no longer operational and that CJCs are now regionally focussed.6
10.3 The Commission can think of no reason for the retention of a provision requiring the gazettal of premises for CJCs.
Use of court facilities
10.4 The CJCs Act currently provides that the activities of a CJC may be conducted at such places as the Director may approve from time to time, “subject to the policy guidelines determined by, and any directions of, the Council”.7 One particular aspect of this discretion is the question of whether it is appropriate that CJCs use court facilities for mediation. This question has been the subject of some debate amongst mediation practitioners. The question is an important one because the use of court facilities may have an impact on the effectiveness of CJCs in such areas as the provision of services to particular communities and community development.
10.5 On a practical level the use of court facilities is convenient and cost effective, since court facilities are already provided by the Attorney General’s Department.8 Courts, because they are staffed and are often close to police stations, also offer greater security for mediators and clients.9 On the other hand court facilities will not be so convenient for a number of CJCs mediations since they may be unavailable on weekends and after hours.10 Accommodation is a problem in some courts - few court venues would offer the flexibility that CJCs are looking for.11
10.6 It is possible that the use of court facilities by CJCs could suggest too close a connection to the courts to the disadvantage of both CJCs and the courts. Some concerns have been raised that too close a connection with the courts may impact upon the perceived independence of CJCs.12 Others have identified concerns for the standing of the courts. It has been suggested that close associations with alternative dispute resolution programs may present problems for the standing and integrity of traditional courts which “fill a highly specific role as custodians of the sovereign power of adjudication of disputes through the mechanism of due process and by the application of principles and rules of law”. It is considered by some that ADR programs are “additional or complementary to litigation” and should not be seen as “alternative procedures within the services provided by the court system”.13 Others have pointed out that confusion may result where “courts, identified with authoritative third party decision-making, become the locus of dispute resolution services of an entirely different character”.14
10.7 Such confusion is not seen as a problem by some. One submission noted that CJCs and the courts are “all part of the one justice system under the Attorney General addressing conflict in society for best resolution and outcomes”.15 Another submission stated that mediation is increasingly seen as part of the dispute resolution process and having mediation available at the courts “draws attention to the desirability of trying mediation before getting involved in costly legal proceedings”.16
10.8 The proximity of CJCs to the courts may have the effect of disempowering17 or excluding some participants. If mediation is about providing an alternative to traditional methods of dispute resolution and encouraging the participation of people who may, for various reasons, be wary of the justice system,18 close proximity to courts may not be a good idea.19 This could be especially so in the case of groups who have a history of poor relations with the criminal justice system, for example, Indigenous people. It was originally proposed that the Redfern CJC be located at the Redfern Local Court and operate “in a fashion which could be more formal and more obviously allied to the traditional legal system”. However, consultations with organisations and individuals in the area at the time revealed that this would be an “unpopular decision and one which might well prejudice the ability of the centre to attract cases and clients”.20
10.9 On the other hand, it has been suggested that close physical associations with the courts and other “legal” agencies has made little difference to the types of clients who approach CJCs:
It was in fact with some reluctance that CJCs initially used court houses or legal aid offices for local mediation sessions. To everyone’s surprise, it did not seem to make any difference to the service users or the effectiveness of the process.21
This, however, might suggest little more than that the type of person who would be reluctant to attend a mediation at a court house would not have made use of CJC mediations in any case.
10.10 Physical proximity to court houses has also been seen as an effective way of increasing case loads for CJCs, at least in so far as they deal with cases that have some connection with the formal legal system. Extensions to the Campbelltown Court House in 1989 incorporated accommodation for CJCs designed to “retain its own identity with totally separate access”.22
10.11 In this context, CJCs mediators have been attending Local Courts to mediate some matters, mostly small claims, on the spot. This practice has attracted varying responses. One submission observed that in the southern region there are four courts that are not covered by CJCs on court days which means that the service is not promoted to the public at a time when they could be most receptive to the services offered.23 A recent review of a small claims mediation scheme at Exeter County Court in England found that 73% of participants thought that the fact that the mediations took place in the court building helped the mediation process.24 However, there are other circumstances where such an approach is not appropriate. These are dealt with elsewhere in this report.25
The Commission’s view
10.12 The arguments for and against CJCs using court facilities for mediations suggest that much will depend on the circumstances of the individual disputes that present themselves. There will clearly be some circumstances where the provision of mediation services in court facilities will be inappropriate and others where holding the mediation in court facilities will be highly desirable, for example, where small claims matters are being mediated. Ideally a range of venues ought to be available and this would appear to be the case at present. The engagement of particular venues is properly the responsibility of the Director of CJCs. There is no demonstrated need at present but it is possible that in future it may be necessary to seek guidance of the CJCs Council to identify the types of disputes that ought not to be mediated in court complexes.
DEPUTY DIRECTORS
10.13 When CJCs were first established there was a Director for each of the three Centres.26 This was a means of managing the pilot or development phase of CJCs when early plans included the possibility that each Centre might develop along different lines as a form of controlled experiment.27 In 1983 it became possible to have one person as a Director of multiple Centres. In 1992, amendments were passed to reflect the reality that there was in fact one Director for all CJCs, and also to provide for the appointment of Deputy Directors.28
10.14 According to the Act a Deputy Director has no specific role that could not also be allocated to any other member of staff. As such, references to a “Deputy Director” are unnecessary since a Deputy Director need not be appointed for the Director to be able to delegate such functions under the Act to that officer as a “member of staff”.
10.15 In IP 23 the Commission therefore asked whether references to the “Deputy Director” should be removed from the Act.29 Submissions that considered the issue supported the removal of such references from the Act.30
10.16 The Commission cannot identify any reason for retaining references to the “Deputy Director” in the CJCs Act.
REVIEW OF THE CJCs ACT
10.17 The Act currently provides that “The Minister may cause or arrange for an evaluation to be made, at such times and in respect of such periods as the Minister thinks fit, of Community Justice Centres and of their operation and activities”.31 Since 1992 all new legislation in New South Wales includes stricter review requirements, specifying dates for commencement of reviews and for the tabling of reports in Parliament. A standard formulation, leaving aside variables such as time limits, is:
The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.
Such a review is usually to be undertaken as soon as possible after 5 years has passed since the date of assent to the Act in question.
10.18 In IP 23 the Commission asked whether a clause requiring periodic review should be inserted in the CJCs Act.32
10.19 Of the submissions that addressed the issue, one considered that a requirement for periodic review was “not necessary”,33 another noted that periodic reviews are a good thing34 and another submission felt that there was no need for a specific provision in the CJCs Act because a three-yearly review could probably be carried out as part of the AGD’s business development plan.35 CJCs, however, submitted that the CJCs Act should be subject to review like any other Act.36
10.20 The Commission notes that this Report represents the first major review of the operation of the Act since it was passed in 1983 (following a review of the pilot scheme Act of 1980) and agrees that there is merit in having a periodic review of the Act as is now standard practice with most new legislation in New South Wales. The Commission considers that 5 years from assent to any amending Act resulting from this Report will be a sufficient date for the commencement of the next review of the CJCs Act.
RECORDS
10.21 Section 17 of the CJCs Act currently deals with the records of CJCs, including their retention, access and disposal.
Requirement to keep records for evaluation purposes
10.22 The Act currently requires the Director to ensure that “such records relating to the activities of Community Justice Centres are made and kept as are necessary or appropriate to enable a proper evaluation of Community Justice Centres under section 26 to be made”.37
10.23 This provision may need to be read in light of CJCs’ position in the Attorney General’s Department. The Public Finance and Audit Act 1983 (NSW) places a requirement on the Director-General of the Attorney General’s Department to ensure that “proper accounts and records in relation to all the operations of the Department” are kept.38 “Proper” records would include such records as are necessary to ensure that the Auditor-General can conduct a performance audit of CJCs.39 However, these other requirements may not cover all that is “necessary or appropriate to enable a proper evaluation of Community Justice Centres under section 26”. The provision in the CJCs Act, because it is linked to questions of evaluation of CJCs, involves different considerations to the other provisions in s 17 which deal with access to and disposal of CJCs records.40 The Commission is of the view that s 17(1) should be retained but relocated to s 26 of the CJCs Act which makes provision for the evaluation of CJCs.
Access and disposal
10.24 In addition to imposing a positive requirement in respect of records that are necessary or appropriate for evaluation purposes, the Act also states that the CJCs Council is entitled to inspect “any records” of a CJC and that the records of any CJC may be “disposed of only in accordance with the directions of the Council”.41
10.25 The disposal and retention of NSW government records and questions of access to them are currently governed by a number of Acts, including the Privacy and Personal Information Protection Act 1998 (NSW) and the State Records Act 1998 (NSW). Conformity with the provisions in these Acts will be the responsibility of the Director of CJCs. The additional provisions currently contained in the CJCs Act are, therefore, unnecessary. The Commission recommends that s 17(2) and s 17(3) of the CJCs Act be repealed.
10.26 Various researchers and bodies, including the CJCs Council, may, from time to time, require access to CJCs records for the purposes of evaluation and quality assurance, or even to investigate complaints. The Commission expects that access will be granted in conformity with the requirements of the relevant State legislation.
FOOTNOTES
1. Community Justice Centres Act 1983 (NSW) s 15.
2. Community Justice Centres Act 1983 (NSW) s 16(1).
3. Community Justice Centres Act 1983 (NSW) s 16(2).
4. IP 23 Issue 38.
5. Confidential 2, Submission at 4; CJCs, Submission 1 at 20; Law Society of NSW, Submission at 12.
6. CJCs, Submission 1 at 20.
7. Community Justice Centres Act 1983 (NSW) s 16(2). See para 3.35 and Recommendation 5 above, for proposed amendments to s 16(2).
8. Although it has been observed that the use of court facilities is rendered necessary because of the “realities of limited funding”: Law Society of NSW, Submission at 6.
9. J Courcier, Submission at 2; Law Society of NSW, Submission at 6
10. J Courcier, Submission at 2.
11. Registrars, Local Courts, Consultation.
12. J Courcier, Submission at 2; R G Jones, Submission at 3.
13. L Street, “Mediation and the Judicial Institution” (1997) 71 Australian Law Journal 794 at 795.
14. H Astor and C Chinkin, Dispute Resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 270 referring to S Roberts, “Three Models of Family Mediation” in R Dingwall and J Eekelaar (ed), Divorce Mediation and the Legal Process (Clarendon Press, Oxford, 1998) at 148.
15. Confidential 2, Submission at 2.
16. Law Society of NSW, Submission at 6.
17. J Courcier, Submission at 2.
18. For example, Aboriginal and Torres Strait Islander peoples, immigrants, gay men and lesbians, people with disabilities and young people: H Astor and C Chinkin, Dispute Resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 168; T Sourdin, Alternative Dispute Resolution (Lawbook Co, Sydney, 2002) at 116-117.
19. J Schwartzkoff and J Morgan, Community Justice Centres: A Report on the New South Wales Pilot Project, 1979-81 (Law Foundation of New South Wales, 1982) at 197.
20. J Schwartzkoff and J Morgan, Community Justice Centres: A Report on the New South Wales Pilot Project, 1979-81 (Law Foundation of New South Wales, 1982) at 16.
21. W Faulkes, “The Modern Development of Alternative Dispute Resolution in Australia” (1990) 1 Australian Dispute Resolution Journal 61 at 66.
22. W Faulkes, “The Modern Development of Alternative Dispute Resolution in Australia” (1990) 1 Australian Dispute Resolution Journal 61 at 66.
23. Confidential 1, Submission.
24. S Prince, Court-based Mediation: A preliminary analysis of the small claims mediation scheme at Exeter County Court (A Report prepared for the Civil Justice Council, 2004) at 52.
25. See para 4.73-4.74.
26. Community Justice Centres (Pilot Project) Act 1980 (NSW) s 9. See also NSW, Parliamentary Debates (Hansard) Legislative Assembly, 19 October 1983 at 1881.
27. The proposals were never followed through. See W Faulkes, “The Modern Development of Alternative Dispute Resolution in Australia” (1990) 1 Australian Dispute Resolution Journal 61 at 63-64; J Schwartzkoff and J Morgan, Community Justice Centres: A Report on the New South Wales Pilot Project, 1979-81 (Law Foundation of New South Wales, 1982) at 9-10, 13, 31.
28. Statute Law (Miscellaneous Provisions) Act (No 3) 1992 (NSW) Sch 1.
29. IP 23 Issue 40
30. Law Society of NSW, Submission at 12; Community Justice Centres, Preliminary Submission at 1; CJCs Reference Group, Preliminary Submission at 2.
31. Community Justice Centres Act 1983 (NSW) s 26.
32. IP 23 Issue 44.
33. Confidential 2, Submission at 4.
34. D Oldfield, Preliminary Submission.
35. Law Society of NSW, Submission at 13.
36. CJCs, Submission 1 at 21.
37. Community Justice Centres Act 1983 (NSW) s 17(1).
38. Public Finance and Audit Act 1983 (NSW) s 45C.
39. Public Finance and Audit Act 1983 (NSW) s 38B(1).
40. See para 10.24-10.26.
41. Community Justice Centres Act 1983 (NSW) s 17(2) and (3).
